Jayant Nath, J
CA 409/2010 in Crl.M(Co.)2/2010
1. Crl.Misc.2/2010 has been filed by the petitioner for perjury and related offences by the proposed accused while filing counter affidavit dated
24.2.2010 filed in CCP 1/2009 in Co.App.(SB) 6/2008 & 7/2008 titled Montreaux Resorts (Private) Limited and Others vs. Vikram Bakshi and
Others. The said petition has been filed under Section 340 Cr.PC for prosecution of the offence of perjury.
2. The genesis of the present dispute relates to a land in Kasauli, Dist. Solan, Himachal Pradesh. The land was owned by the petitioner/family of the
petitioner. Some of the persons being part of the Petitioner Group entered into an MOU dated 21.12.2005 with Mr.Vikram Bakshi. The project was a
joint venture between the Petitioner Group and Bakshi Group. There was to be some transfer of share holding in favour of Bakshi Group in the
company Montreaux Resorts (Private) Ltd. Pursuant to the MOU, Mr.Vinod Surha and Mr.Wadia Prakash, nominees of Mr.Vikram Bakshi were
appointed as additional directors of the Company.
3. Disputes arose between the parties. Mrs. Sonia Khosla wife of the petitioner filed a petition under Sections 397 and 398 of the Companies Act,
1956 before the Company Law Board (CLB).
4. There are events that arose thereafter. According, to the petitioner, Mr.Wadia Prakash and Mr.Vinod Surha ceased to be directors of the Company
on 30.09.2006. Further, on 18.12.2007 in a purported meeting of the Company held Mr. Deepak Khosla and Mr. R.K. Garg were appointed as
directors of the Company and the Board allotted 6.58 lakhs equity shares to 11 persons being part of the Petitioner Group. The Bakshi Group stated
that the alleged meeting of 18.12.2007 was illegal.
5. The CLB vide its order dated 31.01.2008 where the matter was pending directed the parties to maintain status quo with regard to the shareholdings
and the directors of the Company as it existed on the date of filing of the petition i.e. 13.08.2007.
6. Three appeals were filed against the said order dated 31.01.2008 before this Court. Mr. R.P.Khosla, father of the petitioner herein filed an appeal
being Co. A. (SB) No. 7/2008. This appeal was disposed of by order dated 11.04.2008. The appeal was disposed of noting that both the parties agree
that Mrs.Sonia Khosla will withdraw Co. Pet. 114/2007 because the arbitration clause had already been invoked. Both the parties therein agreed that
they shall maintain status quo with regard to the shareholdings and the fixed assets of the respondent Company as it stood at the time of filing of the
petition before the CLB. Other directions were also agreed upon. Another appeal was filed by Mrs.Sonia Khosla being Co. Appeal (SB) No. 6/2008.
This was disposed of on 22.04.2008. This court noted that as the matter is sub-judice before a panel of arbitrators, it would be appropriate that the
parties maintain status quo with regard to the composition of the Board and shareholdings as it existed on the date of filing of petition by Mrs.Sonia
Khosla before the CLB i.e. 13.08.2007.
7. The third appeal was filed by Mr.R.K. Garg who claimed that he was prejudiced by the order of the CLB dated 31.01.2008 as he had been
removed as a director without a hearing. This company appeal being Co. A(SB) 23/2009 came up for hearing on 13.04.2010 when this court issued
notice in the appeal and the application for condonation of delay and ordered that the operation of the impugned order dated 31.01.2008 as far as it
cancels the shareholdings of the appellant and his directorship shall remain stayed.
8. Against the said order dated 13.04.2010 and some other orders, an SLP being SLP No. 23796-98/2010 was filed by Mr. Vikram Bakshi before the
Supreme Court. The SLP was disposed of by order dated 08.05.2014 with the directions to the CLB to decide Co. Pet. 114/2007 filed by Mrs. Sonia
Khosla within a period of six months. The CLB was also directed to decide the application filed under Section 340 Cr.P.C. filed by Mrs. Sonia Khosla.
9. The present petition emanates from a contempt petition being CCP 1/2009 that was filed in the Company Appeal No. 6/2008 that was filed by
Mrs.Sonia Khosla impugning the order of CLB dated 31.01.2008 and Company Appeal No. 7/2008 that was filed by Mr.R.P.Khosla also impugning
the order dated 11.4.2008. As stated above both these appeals have been disposed of by order dated 22.4.2008 and 11.4.2008 respectively.
10. The present petition was filed before the judgment of the Supreme Court dated 8.5.2014. In the present petition which is filed under Section 340
Cr.P.C. the salient contention of the petitioner is that he was the CEO of the company Montreaux Resorts Pvt. Ltd. He was the architect of the
transaction that took place in December 2005 with Mr.Vikram Bakshi. Mr.Vinod Surah and Mr.Wadia Prakash were appointed by the Board of
Directors of the said company as the Additional Directors in December 2005 under Section 260 of the Companies Act, 1956 to hold temporary
charge. They were temporary Directors with finite tenure lasting only till the successor AGM. They ceased to be Directors from 30.09.2006, if not
before. It is pleaded that the act of contempt which is subject matter of CCP 1/2009 were committed in December 2008 or thereabout when these
persons had no further lawful connection with the company. It is stated that these two persons who had ceased to be the Directors of the company
have pretended to have allegedly acted as Members of the Board of Directors by appointing Mr.Vikram Bakshi as an Additional Director on
19.3.2007. It is further pleaded as follows:-
“Thus, this nonsensical absurdity on their part is wholly illegal, and a total and complete nullity in law, and thus, null and void ab initio as if non est,
as it is of no lawful significance, consequence, relevance or effect whatsoever.â€
11. While arguing the present petition, Mr. Deepak Khosla who is appearing in person had on 9.10.2018 stated that Company Application 409/2010 be
heard first and then the main petition can be heard.
12. A perusal of the application being CA 409/2010 shows that it seeks the following reliefs:-
“(i)appoint a Local Commissioner to visit the premises of the Prospective Accused Nos. 1, 2 and 3 at 11th , 13 th an 15th Floor,Mohan Dev
Building, Tolstoy Marg, New Delhi and at 13 Jor Bagh, New Delhi (c/o of Connaught Plaza Restaurants Pvt. Ltd) to seize any documents and records
listed at para -11-above.
(ii)Direct Registrar of Companies to produce and place on the record of this Hon'ble Court the original file pertaining to Montreaux Resorts (P) Ltd,
and / or the Form 32 dated 23-12-2005 lying in his records.â€
13. As per the application if this court were to proceed successfully with the matter it would require the original documents forged by the prospective
accused as they are necessary to support any complaint to be filed by this court in the trial court. It is further pleaded that if the prospective accused
get a word of the proceedings the said documents would undoubtedly be secreted and destroyed by them to save themselves from criminal
prosecution. Hence it is pleaded that suitable directions, as noted above be passed. The list of forged documents and record said to be in possession of
the prospective accused whose seizure is sought are stated as follows:-
Regarding claims to Directorship:
1. Minutes of Board Meetings till date, including those in which any of the Prospective Accused have been authorized to represent the MRL Company
in the present proceedings.
2. Directors Attendance Registers relating to these meetings.
3. Copy of written Notices sent for these meetings.
4. Copy of proof of dispatch /delivery of these Notices.
5. Copies ofAgenda(s) circulated for these meetings.
6. Copy of Books of Accounts evidencing incurring of postal expense on dispatch of notices.
7. Copy of draft Minutes of these meetings circulated to the attendees for their approval prior to approval of the same, alongwith proof of
dispatch/receipt, and copy of approval of the Draft Minutes by the attendees (if any).
Regarding claims to being shareholder:
1. Copy of Share Ceitificate(s) in their possession.
2. Copy of Share Transfer Forms in respect of the above to the extent that they represent shares transferred to the name of prospective Accused No.
1 (as opposed to fresh shares issued in his name).
3. Copy of written requests to MRL requesting execution of the Share Transfers, with proof of acknowledgement thereof.
4. Minutes of Board Meetings in which the transfer of shares or issuance of fresh shares has been approved.
5. Minutes of Board meetings where splitting up of any Share Certificate has been approved.
6. Directors Attendance Registers relating to these Board meetings.
7. Copy of written Notices sent for these meetings.
8. Copy of proof of dispatch/deliveiy of these Notices.
9. Copies of Agenda(s) circulated for these meetings.
10. Copy of Books of Accounts evidencing incurring of postal expense on dispatch of notices pertaining to these meetings.
11. Copy of draft Minutes of these meetings circulated to the attendees for their approval prior to approval of the same, alongwith proof of
dispatch/receipt, and copy of approval of the Draft Minutes by the attendees (if any).
12. Copy of Cash Memo showing purchase of Statutory Registers of the Company showing insertion of the relevant entries in the Register of
Directors, the Register of Shareholders, Directors Attendance, Register of Members, etc.
13. Date of insertion of the name of Prospective Accused No. 1 in the Register of Members and the name of the person who inserted his name.
14. Copy of evidence in support of the consideration agreed for the shares transferred to the name of Prospective Accused No. 1, and proof of
payment thereof.
15. Copy of first Annual Return filed with Registrar of Companies alongwith Counter-Filing Receipt.
16. Copy of written offer to the other shareholders of the Company in respect of shares transferred to the name of Prospective Accused No. 1 in
compliance with the provisions of Article 7 of the Company's Articles of Association.
17. Copy of alleged resignation letter of Mr. Vini Ahuja, resigning from the Board of Directors of MRL.
18. Copy of Form 32 filed with Registrar of Companies in respect of the same.
19. Copy of Resolution authorizing the person who filed the Form 32 with the Registrar of Companies in respect of the resignation of Mr. Vini Ahuja
from the Board of Directors of MRL.
20. Copy of the Board Minute pertaining to (19).
21. Copy of (2) to (7) in respect of (20).
22. Minutes of Board meeting in which it was decided to hold an EGM for increase in the Share Capital of the company from Rs. 1 lakh to Rs. 1
crore.
23. Copy of (6) to (11) in respect of (20).
24. Minutes of the EGM in which increase of the share capital was approved.
25. Copy of (6) to (11) in respect of (22), and also Register of Members Attendance in respect of (24).
26. Minute Book of the Company.â€
14. The first thing that appears obvious is that genesis of the dispute is regarding the Minutes of the Board of Directors of the said company. The plea
of the petitioner is that these are forged minutes. Based on this contention various other pleas have been made.
15. A perusal of the judgment of the Supreme Court in Vikram Bakshi and Others vs. Sonia Khoslo dated 8.5.2014 in SLP (Crl.) 6873/2010 would
show that this aspect was noted by the Supreme Court in as follows:-
“11. Ms.Sonia Khosla filed an application under Section 340 of the Code of Criminal Procedure (Cr.PC) before the CLB alleging that forged
documents were filed before the CLB. However, while this application is still pending before the CLB, in October, 2008 she filed another application
under section 340 Cr.PC in the High Court of delhi on the same very grounds which were taken in the application before CLB. She sought
prosecution of the petitioners under Section 195(i)(b)(ii) read with Section 340 Cr.PC alleging that the minutes of theAGM of the Company allegedly
held on 30.9.2006 were forged. The reason given therein to approach the High Court was that she was forced to file the petition in the High Court as
there was a complete inaction on the part of CLB on her application before it. She sought to rest her application on sub-section 2 of Section 340
Cr.PC for its maintainability in the High Court. In this application orders dated 15.2.2010 are passed by the High Court and that order is the subject
matter of challenge in the present proceedings. As can be easily discerned, the petitioners’ main contention is that application u/s.340 Cr.PC is not
maintainable.â€
16. The Supreme Court regarding the said petition filed under section 340 Cr.PC directed as follows:-
“21….. In view of the aforesaid consensus, about the course of action to be adopted in deciding the disputes between the parties, we direct the
Company Law Board to decide Company Petition No.114 of 2007 filed before it by Ms.Sonia Khosla within a period of six months from the date of
receiving a copy of this order. Since, it is the CLB which will be deciding the application under Section 340 Cr.PC filed by Ms.Sonia Khosla in the
CLB, High Court need not proceed further with the Criminal Misc. (Co.) No.3 of 2008. Likewise the question whether Shri R.K.Garg was validly
inducted as a Director or not would be gone into by the CLB, the proceedings in Co.Appeal No.(SB) 23 of 2009 filed by Mr.R.K.Garg in the High
Court also become otiose.â€
17. Hence, the petition filed by Mrs.Sonia Khola under section 340 Cr.PC is to be decided by the CLB/NCLT. I am told proceedings are still pending
before the NCLT and the NCLT is seized of the issue in view of the directions of the Supreme Court. By the present petition that is filed by
Mr.Deepak Khosla, it is pleaded that the respondent-Mr.Vinod Surha has while filing a counter affidavit in CCP 1/2009 made multiple false statement
which have been fabricated. Reliance is placed on forged documents by him previously before the Company Law Board in August 2007. It is clear
that a common thread of facts runs through these two mattes.
18. The other aspect is that the aforesaid application has been pending since 2010. Now in 2018 to state that the respondents may destroy or tamper
with the aforesaid document to defeat the prosecution that may be launched by this court appears to be a misplaced argument. There is nothing on
record to show that any act has been allegedly done by the respondents in the recent past which would warrant passing of any such directions.
19. I also cannot help noticing that a long list of documents has been mentioned for production without stipulating the need or requirement. The manner
in which the documents are being sought appears to show that the same is a roving inquiry.
20. I may note another fact. CCP 1/2009 that was filed by the Company was adjourned sine die. A Coordinate Bench noted the submissions of the
learned counsel for the respondents that vide order dated 24.04.2012 passed by the Division Bench in LPA No. 16/2012 all proceedings pending
between the parties including these cases have been stayed. The matter was adjourned sine die with liberty to the parties to revive the same. LPA
No. 16/2012 was disposed of on 24.04.2012. No attempt has been made by the petitioner to revive the said CCP.
21. In my opinion, at this stage, there is no need or requirement for passing any order in this application. After hearing the matter on merits, if a need is
felt for production of any document, the petitioner would be at liberty to move an appropriate application on that stage.
22. The present application is disposed of accordingly.
